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Church & State

Invocation Confrontation

Janet Joyner has deeply personal reasons for wanting to keep a healthy distance between church and state: More than 300 years ago, her Calvinist forebears faced a tough choice when word circulated that French King Louis XIV would revoke religious toleration and make it illegal to be a Protestant.

“My ancestors had three choices: abjure their minority religion, flee or stay and be executed,” she said. “So, I think that all Americans should learn about the individual right of religious conscience, the protection of minorities and the ab­horrence of tyranny, whether religious or political.”

These days, Joyner is putting her lifelong interest in religious liberty into action in her home community of Winston-Salem, N.C. She has joined a lawsuit there aimed at stopping local government officials from regularly opening public meetings with Christian prayer.

For the past several months, Joyner and other church-state separation activists have worked hard to raise the issue of pre-meeting prayers with local officials. Last year, the American Civil Liberties Union of North Carolina asked officials in Winston-Salem and surrounding Forsyth County to stop opening their sessions with sectarian devotions. The civil liberties group pointed out that the 4th U.S. Circuit Court of Appeals has twice ruled such government-sponsored prayers unconstitutional. Non-sectarian prayers could be used instead, the ACLU noted.

Attorneys with Americans United for Separation of Church and State joined in. While the effort did bear fruit in some communities, it has not yet swayed officials in Forsyth County. Even if officials were inclined to change, they are now facing pressure from conservative ministers who are depicting the effort to drop sectarian prayers as an attack on Christianity.

In December, a delegation of 11 Baptist ministers called a press conference in Winston-Salem to send a message to local civic leaders: Go right ahead and continue opening your meetings with prayers that invoke the name of Jesus Christ.

“The purpose is for us to say to our city fathers, ‘We believe that it is our right to pray the way we want to before the city council session,’” said the Rev. Ron Baity of Berean Baptist Church.

Forced into a tight spot, officials in Winston-Salem punted; they put off a decision and eventually promised to adopt a more inclusive prayer policy. But in Forsyth County, defiance was the order of the day. In January, Gloria D. Whisenhunt, chairwoman of the Forsyth County Board of Commissioners, an­nounced that the practice of opening its deliberations with Christian prayer would continue.

On April 2, the ACLU of North Carolina and the Winston-Salem Chapter of Americans United filed a lawsuit challenging Forsyth County’s prayer policy. The case, Joyner v. Forsyth County, was brought on behalf of Joyner and two other county residents who argue that opening government meetings with sectarian invocations shows preference for one religion and fails to recognize the diversity of the region.

“Invocations should be an invitation for each to pray in his or her own way,” Joyner, a retired educator and linguist who has lived in Winston-Salem for nearly 35 years, said. “For a Christian to presume to tell a Buddhist, Muslim or Jew or anyone in whose name to pray clearly crosses the line, and for government to show preference or favoritism is against the law. I expect my officials and our leaders, whether spiritual or political, to obey the law”

Joining Joyner as plaintiffs in the case are Constance Lynn Blackmon and Osborne Mauck. All three are members of Americans United.

The trio did not take this step lightly. While trying to resolve the matter outside of court, the ACLU and the local AU chapter sent letters to local governments, reminding them that sectarian prayer before meetings has been declared unconstitutional. The groups continued dialoguing with officials in Forsyth right up until the board’s final defiance.

Steve Weston, president of the Winston-Salem Chapter of Americans United, has lived in the area for eight years and watched its religious diversity expand. Weston said the commissioners are reluctant to drop old habits.

“They’ve been praying to Jesus and Lord for a long time,” Weston said. “The county commissioners are not going to change that, quite frankly, unless they are forced to.”

The commissioners may very well be. The law is firmly on the side of the ACLU and the Americans United chapter. In 2004, the 4th Circuit, which is generally regarded as one of the most conservative in the nation, ruled in Wynne v. Town of Great Falls that a South Carolina community could not open its meetings with prayers that invoked Jesus. Community leaders voted to switch to non-sectarian prayers. The following year, the 4th Circuit reaffirmed the use of non-sectarian prayers in Simpson v. Chesterfield County.

In light of those rulings, AU and the ACLU have been urging other municipalities in the 4th Circuit, which includes Maryland, West Virginia, Virginia and the Carolinas, to drop sectarian invocations.

Many towns and counties have, but others have vowed to retain prayers that end “in Jesus’ name.”

Officials in Forsyth County can’t say they were not warned. County Attorney Davida Martin advised the board that its practice of employing sectarian prayers is unconstitutional. Her advice went unheeded.

Part of the problem is that Religious Right legal groups are roaming the state, telling local governments that they don’t have to change their policies. In nearby Thomasville, Mike Johnson, an attorney with the Alliance Defense Fund (ADF), a legal group founded by TV preachers and their allies, told the city council not to worry about being sued. If there is legal action against the city, he vowed, the ADF will defend it for free. (A second group, the Christian Law Association in Florida, has made a similar offer in other jurisdictions.)

The Winston-Salem Journal reported that Thomasville City Attorney Paul Rush Mitchell advised the board to stop using sectarian prayers, pointing to the 4th Circuit’s rulings. But after a raucous meeting March 19, which included a local minister leading an overflow crowd in a chorus of “Amazing Grace,” the council voted 6-1 to ignore Mitchell’s advice.

Attorneys at Americans United say the ADF’s intervention is reckless and irresponsible. They note that the 4th Circuit has settled the matter and point out that any community that is sued might end up stuck with a steep bill for attorneys’ fees if it loses in court.

“There is no point to continued defiance,” said Ayesha N. Khan, Americans United legal director. “These communities are only setting themselves up for a court battle they will lose and will end up squandering taxpayer dollars in the process.”

In Forsyth County, officials are also under pressure from the North Carolina Family Policy Council, a statewide affiliate of James Dobson’s Focus on the Family (FOF). In an e-mail bulletin, the organization blasted the AU-ACLU lawsuit as “radical,” calling it part of an “ongoing campaign to intimidate government bodies across North Carolina into altering public prayer policies.”

Bill Brooks, president of the FOF affiliate, encouraged Forsyth officials to fight the legal action.

“This lawsuit is an attack on the very foundation of our American way of government and is a direct assault upon the right to free speech of individual pastors who come to meetings to offer prayer,” Brooks insisted.

AU activists note that the fuss has been brewing for some time. Residents on the scene say that’s frustrating, since the matter could be easily resolved without going to court.

“It’s kind of sad,” Weston, a clinical social worker, told Church & State. “I hate to see the taxpayers stuck with a real large legal bill – but that will be on the hands of the county commissioners.”

Ideally, Americans United would like to see council prayer discontinued altogether. AU does not believe that government should be in the prayer business in any manner. Private citizens would, of course, retain the right to pray on their own prior to meetings – they just would not be able to force anyone else to listen or take part.

But the federal courts have never embraced that perspective. In a 1983 Supreme Court ruling, the justices ruled that the state of Nebraska could use tax funds to hire a legislative chaplain. The ruling in Marsh v. Chambers cited the long practice of chaplains in Congress, noting that they go back to the founding period. (See “Civil Religion, Uncivil Strife,” page 11.)

Many local governments extrapolated the decision in Marsh, assuming it would cover their prayer practices as well. But the Marsh decision contained an important caveat: It indicated that legislative prayer intended to “proselytize or advance any one, or to disparage any other, faith or belief” might not pass constitutional muster.

In practice, this means prayers before Congress are usually non-sectarian, referring to “God” or “the Almighty” instead of Jesus Christ. The House and Senate chaplains also usually take steps to be inclusive. Guest religious leaders from non-Christian traditions are often invited to give invocations.

Many local communities have been doing things differently. In Great Falls, S.C., resident Darla Wynne, a Wiccan, expressed concern about the town’s constant use of Christian prayers.

Ruling in her favor, the 4th Circuit observed, “[B]rief invocations of the Almighty before engaging in public business have always…been part of our Nation’s history. The Town Council of Great Falls remains free to engage in such invocations prior to Council meetings. The opportunity to do so may provide a source of strength to believers and a time of quiet reflection for all.

“This opportunity does not, however, provide the Town Council, or any other legislative body, license to advance its own religious views in preference to all others, as the Town Council did here,” the court continued. “The First Amend­ment bars such official preference for one religion, and corresponding official discrimination against all others.”

Forsyth County officials, AU argues, are in violation of this ruling by showing official preference toward Christianity. The joint Americans United/ACLU legal complaint details a list of invocations used by local Christian clergy from January of 2006 through February 2007, detailing example after example of sectarian prayers.

“God, we pray that You would lead us and we pray that You will forever bless Forsyth County,” intoned Pickett. “If there’s ever been a time that we need You Lord, we sure need You now. We pray that You would bless our efforts here tonight, and we pray that we will forever look to You.

“The word tells us,” he continued, “to look into the hills from whence cometh all of our help, knowing that all of our help come[s] from You. We thank You, we praise You, and we give Your name glory; and we ask it all in Your son Jesus’ name. Amen.”

Six weeks later, the Rev. Jeffrey A. Longsinger of First Alliance Church opened a meeting in a similar fashion.

“I pray for these commissioners tonight,” he said. “I pray for all that will transpire in this meeting under Your authority; as the act of governing goes forth, that it would go forth with equity and with justice and with kindness and with wisdom; and while He was on Earth, Your Son taught us to pray that Your will would be done on earth as it is in heaven; therefore, we pray that Your will would be done here in Forsyth County as it is in heaven. Father, we invoke Your presence in this place. We pray this all in the name under whom is all authority, the Lord Jesus Christ. Amen.”

Forsyth County officials have made it clear they don’t see a problem. After the case was filed, Whisenhunt told the Winston-Salem Journal that the commissioners do not give clergy guidelines on how to pray and don’t intend to start.

On April 11, the board voted 4-3 to fight the lawsuit, accepting representation from the ADF.

Weston opposes that. He notes that the area long ago lost any sense of religious uniformity. Winston-Salem, a city of nearly 200,000 people, is home to several colleges, the largest being Wake Forest University. Forsyth County, with a population of 315,000 and growing, is a long way from being a rural crossroads.

“All we have to do is look to Iraq to see what a wonderful model theocracy has been for us,” Weston said. “I tell people here it’s a big deal because imagine if you could what it would be like to have the county commissioners open up all their meetings with prayers to Allah. How would we feel about that?”

Legal experts at Americans United note that the Joyner case could clarify an important aspect of the law governing municipal prayers: whether it is legal for a community to establish a rotating system whereby clergy of different faiths offer prayers in their own traditions.

The 4th Circuit Court seems to be against this arrangement, demanding that pre-meeting invocations be non-sectarian. But the 10th U.S. Circuit Court of Ap­peals, ruling in a 1998 case from Utah, reached a different conclusion. It allowed the city of Murray to employ a rotating system of religious leaders, even though many of those clergy used sectarian prayers, as long as the prayers were not used to proselytize or disparage other faiths. (Snyder v. Murray City Corp.) Legal experts say the split in the circuits could interest the Supreme Court in the matter.

“This case deals with fundamental rights,” said AU’s Khan. “In our view, the government should not be in the position of adopting a religious voice on behalf of all of its citizens. It’s time for Forsyth County and other jurisdictions to acknowledge the religious diversity of the country and stop elevating one faith over all others.”

For Joyner, basic principles are at stake. Joyner told Church & State that she looked through commission minutes from January 2003 until October of 2006. During that period, every prayer offered was Christian with one exception – an invocation offered by a Unitarian-Universalist minister. It apparently never occurred to the commission to invite a rabbi until the ACLU’s first letter arrived in October of 2006. The following month, a rabbi gave the invocation. By then, the invitation had the feel of a commission trying to cover its backside.

“They really want to dig in their heels,” Joyner said of the county commissioners. “They claim they’re not about to tell people how to pray. Indeed, they are inviting people who do tell you how to pray. It is their job to see that the government favors no particular faith. This is settled law and they swore to uphold the Constitution, including the First and Fourteenth amendments.”